On this page
Reasons and decision
Parties in attendance
S. M., Appellant
C. S., X, Added Party (Employer)
Introduction
[1] The Appellant worked for the Employer until May 2, 2016 at which time he left his position.
[2] The Appellant then applied for Employment Insurance (EI) benefits. Based on its initial investigation, the Respondent determined that the Appellant had shown just cause for voluntarily leaving his employment.
[3] The Employer filed a request for reconsideration upon learning that the Appellant would not be disqualified from receiving benefits.
[4] After further investigation, the Respondent determined that the Appellant had not shown just cause for voluntarily leaving his employment, and overturned its initial decision. The Appellant is appealing this decision to the Tribunal. The Tribunal hearing was held by in-person for the following reasons:
- a) The complexity of the issues under appeal.
- b) The fact that credibility may be a prevailing issue.
- c) The fact that more than one party will be in attendance.
- d) The information in the file, including the need for additional information.
- e) The form of hearing respects the requirement under the Social Security Tribunal Regulations to proceed as informally and quickly as circumstances, fairness and natural justice permit.
Issue
[5] The issue in this case is whether the Appellant left his employment voluntarily, and if so, whether he had just cause for so doing.
Evidence
[6] In his application for EI benefits, the Appellant first stated that the reason for his departure from work was a shortage of work. However, he clarified soon after that he had resigned from his position, and that the reasons for which he left were contentious (GD3-16 to GD3-17).
[7] The Appellant explained that he left work because of circumstances he felt resulted in part from his depression.
[8] The Appellant felt that he was going to be terminated by his Employer when he saw an advertisement for another paralegal in the company which he felt duplicated his position (GD3-16). The Appellant also alleged that he had not been paid his salary for April, and quit by email after not receiving his paycheque by late in the day on May 2, 2016 when it was due the day prior (GD3-18).
[9] Given he had not been paid for his work and he felt that his job was being advertised, the Appellant believed that his Employer was attempting to replace him. As such, he quit his position (GD3-18).
[10] Upon reconsideration, the Employer stated that the Appellant quit his job and provided her no notice whatsoever (GD3-24). While the Appellant stated his paycheque was late, the Employer stated that the Appellant was being paid in advance, and that it was under no obligation to pay him in advance as it had been doing (GD3-24).
[11] The Employer stated that the Appellant never disclosed anything about his mental health struggles to her even when she asked what was wrong (GD3-25). The Employer also stated that the job advertisement posted to Kijiji was not to replace the Appellant, but was for another paralegal to present in small claims court, and do other such work the Appellant was unable to do because he was not a licensed paralegal (GD3-26).
[12] The Employer stated that she attempted to be supportive of the Appellant in many ways, such as by stocking his favourite drinks and treats at work, and allowing him to leave for weekly appointments without question (GD3-26).
[13] The Employer stated that she and the Appellant had discussed having another paralegal at the office to assist them with going to small claims court and to help pay the rent (GD3-26). The Employer stated that she reassured the Appellant that the addition of another paralegal in the office would not affect his employment and that his position was not in jeopardy (GD3-26).
[14] The Employer stated that the Appellant threatened to walk off the job if he did not get his way (GD3-27).
[15] In terms of the Appellant not being paid on May, 2, the Employer states that the reason the Appellant’s cheque was not ready for him was because she was away from work ill and she was unable to get his cheque to him early as usual (GD3-27). Once the Appellant realized that his Employer was not going to be able to give him his cheque that day, he then contacted her parents and insisted that they pay him (GD3-27). The Appellant quit by email after his request for payment the same day was not addressed immediately (GD3-27). The Employer stated that the Appellant’s decision to quit with no notice put her in a very difficult position which cost her both money and clients, and also tarnished her reputation.
[16] The Employer submits that the Appellant did not disclose information about his depression until May 2, 2016, at which time he told her parents. She stated that he resigned later that same day without notice, and began making threats about legal action he would take if he did not get what he perceived to be money owed to him (GD3-28).
[17] The Employer notes that the Appellant also threatened that he would report the Employer to the Labour Board if she did not choose Code A (shortage of work) for his reason for departure for his Record of Employment (ROE) (GD3-28). The Employer noted that, after his resignation, the Appellant continued to threaten her with lawsuits and claims to the Human Rights Commission, the Law Society of Upper Canada, the Labour Board, and others unless he was paid an additional sum of $50,000 (GD3-28).
[18] The Employer provided the Respondent with a documentation package along with its request for reconsideration, which included an explanation of the Appellant’s salary demands and the terms of employment (GD3-30).
[19] The Employer also included the email sent to them from the Appellant on May 2, 2016, in which the Appellant claimed it was unreasonable that he was not getting paid and that his rent and his support payments would subsequently bounce, and requested an email transfer from the Appellant’s parents (GD3-35).
[20] The Appellant emailed again later the same day about retrieving his belongings from the office and demanding his pay cheque. It was at this time he threated to lodge a complaint if the Employer did not describe his departure from work in a way of his choosing (GD3-36). The Appellant also requested one week of pay in lieu of notice (GD3-36).
[21] The Appellant was informed that there was nothing nefarious about his slightly delayed paycheque, and that the only acceptable inclusion in the Appellant’s ROE would be voluntary leave, as the Appellant had quit (GD3-41). For this reason, the Employer also explained there would be no pay in lieu of notice, and given that there was no threat of termination, that this was not an instance of constructive dismissal (GD3-41).
[22] Upon reconsideration of its initial decision, the Respondent contacted the Appellant again who stated that he was suffering from depression and that many personal issues had combined to create the context in which he eventually felt he had to resign from his employment (GD3-48).
[23] The Appellant stated that he felt that the Employer did not understand his mental health issues, and that this was highlighted by the Employer telling him that they hoped he would be able to better manage his depression on April 27, 2016 (GD3-48).
[24] The Appellant stated that he saw the Kijiji add for a paralegal the next day, April 28, 2016, and felt they were looking for someone to replace him since the job advertised was an exact match to the job he was doing (GD3-48). He felt that if a new paralegal was brought on that he would no longer be required as his position would be made redundant (GD3-49).
[25] The Appellant stated that he attempted to explain his situation to his Employer more on April 29, but felt that the Employer did not understand his needs. He then sent them an article on mending relationships (GD3-48).
[26] The Appellant alleges that he spoke to the Employer’s parents again for over five hours on May 2, and he felt after this conversation he was certainly going to be terminated from his position (GD3-48). The Appellant then sought information about his pay that was due, and after not receiving payment despite several requests he emailed the Employer to say that the situation was beyond repair and they should end the employment relationship (GD3-48 to GD3-49).
[27] The Appellant stated that he returned to the doctor on May 5, 2016 and was placed back on medication for the first time in 10 years.
[28] The Appellant acknowledged that he and the Employer had a settlement meeting on May 6, 2016 at which time he asked for $50,000 for his unpaid wages and the human rights component of his claim (GD3-49).
[29] In discussion with the Respondent, the Employer noted that the Appellant had not provided any medical documentation regarding his depression and/or anxiety and also that he is currently being investigated by the Law Society of Upper Canada (GD3-53).
[30] The Appellant stated that the Employer did not have a heavy enough case load to justify another paralegal, and that he felt they were hiring someone else to replace him. He further stated that he was able to make a decision at the time he resigned, but that he was not able to interact well with people (GD3-54).
[31] The Appellant then provided the Respondent with a package of documents in support of his claim (GD3-56 to GD3-71) alleging that the Employer tried to blame him for his depression and told him he should be able to make his depression go away (GD3-57). The Appellant also provided copies of email correspondence between himself and the Employer’s father starting from April 27, 2016 when the Appellant asks if they would still like him to come into work (GD3-61) and with the Employer inquiring as to why the situation at the office was not as it used to be (GD3-61).
[32] The Appellant also provided a copy of the advertisements that the Employer posted to Kijiji, including an ad for office space as well as an advertisement for a licensed paralegal (GD3-62 to GD3-64).
[33] The Appellant also provided a copy of the article he sent to the Employer’s father about mending relationships (GD3-65).
[34] The Appellant also provided text of several text messages that he alleges were sent between himself and the Employer, in which the Appellant is told that his Employer will not be coming into work today and his reply to her parents that he needs to be paid as his rent and support money is due (GD3-66 to GD3-71). The texts also include a reply from the Employer’s father apologizing for missing the Appellant’s messages but confirming that they will speak to their accountant about the issue the following day (GD3-68).
[35] The Appellant also provided a breakdown of the money he believed to be owing to him, including one week pay in lieu of notice, as well as his April pay (GD3-68). The Appellant’s documents also included a lengthy email explaining his perspective of the situation that resulted in him leaving his employment (GD3-69 to GD3-71).
[36] The Appellant then commented on the Employer’s allegation that his mental health was not discussed at the meeting, stating that if it had not been discussed then why would he have sent an article about dealing with bi-polar relationships (GD3-72). The Appellant further noted that the Employer had failed to pay him for the month of April and had ignored his messages (GD3-72).
[37] Upon finding out that the initial decision was going to be overturned, the Appellant demanded to speak to the decision maker’s manager, with the Respondent’s notes stating that” I told him I'd ask my manager to call him and he said I better or else it could be very bad for me” (GD3-72). Upon speaking to the decision maker’s manager, the Appellant then alleged that the decision making was biased and the decision maker lacked sympathy regarding his medical condition (GD3-73). He further suggested that he felt his claim was not understood, partially because the agent had less life experience than he did, and partially because his Employer was providing false statements about him (GD3-73).
[38] During the hearing, the Appellant provided additional details about the difficulties he was facing at the time he quit his job, including his CRA accounts being garnished and a friend from his youth having just died. In combination with these contextual factors, the Appellant alleged that his frustrations at work resulted in him leaving his employment. The Appellant alleged that he was not thinking rationally during the period from April 27 to May 2 when he resigned his position.
[39] The Appellant reiterated his belief that there was not enough work for both him and another paralegal, and that if another paralegal were hired he would not have a job. He also testified that he and his Employer did not discuss another paralegal joining the company with him as she alleged.
[40] The Appellant stated that he was told on April 27 that his Employer was not happy with his conduct and believed that he should change his behaviour. He stated that “he was so insulted he left.”
[41] The Appellant alleged at the hearing that he told his Employer about his disability within about a month of starting work, and that he “tends to not hide who he is.” He stated that he met his Employer’s parents in May, but that he did not discuss his mental health issues with them until about July because he was not yet comfortable with them.
[42] The Appellant stated that after leaving his position he went to his doctor and began taking medications which he had not taken for years previously. He alleged that his Employer should have known by December, 2015 that he was in a constant fight against depression. When asked at the hearing why he did not get a note from his doctor after his resignation, the Appellant stated that he did not think about getting a note from his doctor because his state of mind was very poor.
[43] During the hearing, the Appellant submitted an email with a photo attachment of a tattoo he received of a semi-colon. He stated that this tattoo represented his choice not to commit suicide as he had planned, at that his Employer was aware of this tattoo and its meaning when he sent the email in April 2015.
[44] During the hearing, the Employer stated that she had no plans to terminate the Appellant, and that had he not quit his employment he would still be employed by the agency. The Employer stated that she had no intention to fire him, and that she needed someone else who was able to go to court because the Appellant was not a licensed paralegal. She stated that she told the Appellant several times that the advertisements posted on Kijiji – one for sharing office space and other for a paralegal – had nothing to do with him or his employment with her.
[45] The Employer stated that the Appellant quit within hours of finding out that she was sick and she was not going to be able to provide him with his pay on May 2, 2016.
[46] In terms of accommodation, the Employer stated that she attempted to check on the Appellant daily when he became withdrawn to ask what was wrong and see if he needed help. The Employer stated that the Appellant would tell her that nothing was wrong, and that he would tell her if something was wrong.
[47] The Employer noted that the Appellant could be difficult to work with, as he did not like being told what to do and would walk out of work if he did not get his way.
[48] The Employer testified that the Appellant never mentioned his depression in either the meetings of April 27 or April 29, and that it did not come to light until he met with her parents on May 2, 2016, which was the same day he quit his job with no notice.
[49] The Employer stated that the Appellant then threatened that she should falsify the ROE but she was unwilling to do so because he had quit. She stated that they met several days later for a settlement conference at which time the Appellant threatened to sue her and file a human rights complaint against her unless she gave him $50,000. The Employer stated that the Appellant has since gone through with his threats because she did not give him the money he demanded.
[50] The Employer stated that at the settlement meeting that occurred May 6, that she told the Appellant that he had never told her about his mental health issues, to which he responded “I didn’t have to.” The Appellant did not recall making that statement.
[51] The Employer also stated that, since the time of his resignation, the Appellant has been denied his license to practise as a paralegal and that he was found to not be of good character from the Law Society. The Employer then attempted to provide the Tribunal with a copy of the decision.
[52] The Tribunal declined to accept the decision the Employer wished to offer, however, noting that the Law Society of Upper Canada’s determination regarding the Appellant’s licensing was outside of the scope of the issue before the Tribunal.
Submissions
[53] The Appellant initially submitted that his resignation was as a result of his belief that he was being constructively dismissed, given that he believed his Employer was looking to replace him at work and because he had not been paid for his work.
[54] At the hearing, the Appellant modified his submissions to the Tribunal, alleging that his decision to resign from his employment was not a rational decision but rather was made as a result of his depression, and that his Employer should have rejected his resignation given that it was not made rationally.
[55] In the alternative, the Appellant submits that he had no reasonable alternative but to leave his employment because his Employer was discriminating against him as a result of his disability, and failed to accommodate him leading up to his resignation.
[56] The Appellant further submits that it was not his responsibility to provide details to his Employer regarding his mental health issues or to provide medical evidence to this effect. Rather, he submits that, pursuant to the Ontario Human Rights Code, there is a duty on the Employer to make the appropriate inquiries to determine if accommodation is required, even if the Employer has not been formally advised of any disability. The Appellant alleges that the Employer should have been aware of his struggles with depression by December 2015, and that she had a duty to inquire further as to whether accommodation was required.
[57] The Respondent submits that the Appellant has not demonstrated that he exhausted all reasonable alternatives prior to leaving his employment, and that one reasonable alternative to leaving would have been to continue working until finding alternative employment.
[58] Furthermore, the Respondent notes that the Appellant’s actions were based on assumptions, as he never heard from his Employer that he was being replaced or that he would no longer be necessary.
[59] The Respondent also notes that the Appellant has alleged that his Employer discriminated against him, but has failed to provide any direct acts or examples of discrimination within the workplace.
[60] Furthermore, the Respondent notes that the Appellant did not visit his doctor until after resigning from his position, and has failed to substantiate his mental health condition to his Employer or the Respondent, which would support his allegations of needing to leave his employment, or to take a break for mental health purposes.
[61] Furthermore, while the Appellant has alleged that he was concerned he was being dismissed in part because of the Employer’s Kijiji adds, the Respondent notes that the Appellant was admittedly not licensed with the Law Society, and, consequently, he would not have been able to perform all of the tasks included in the advertised position.
[62] The Respondent submits that the Appellant’s concern of being replaced at work is not considered just cause for leaving a place of employment, and an alternative to leaving for this reason would have been to secure other employment before quitting.
[63] The Employer submits that the Appellant has not provided any evidence regarding his mental health issues, but rather has given his word on this point only. The Employer also notes that the Appellant was unable to provide any concrete examples of being discriminated against. Finally, the Employer notes that the Appellant acted out of fear that he would have lost his job, but that was not the case and that he should have explored other options prior to resigning without any notice.
Analysis
[64] The relevant legislative provisions are reproduced in the Annex to this decision.
[65] The Tribunal in this case is tasked with determining, pursuant to the Act, whether the Appellant has demonstrated just cause for voluntarily leaving his employment. Such an examination involves first determining whether the Appellant voluntarily left his position, and then considering whether he had just cause for doing so.
[66] The burden of proof is on the Respondent to show that the leaving was voluntary. From there, the burden of proof shifts on the Appellant to demonstrate just cause for leaving (Green v Canada (AG), 2012 FCA 313; Canada v White, 2011 FCA 190).
Did the Appellant leave voluntarily?
[67] The Appellant initially suggested that his resignation was as a result of his belief that he was being constructively dismissed. However, the Federal Court of Appeal has held that even though the factors which may constitute just cause under section 29 of the EI Act are similar to those which may result in a finding of constructive dismissal at common law, that this nevertheless does not change the test under the Act as to whether a claimant’s leaving was voluntary (Canada v Peace, 2004 FCA 56).
[68] The Federal Court of Appeal has held that while it is open to a claimant to bring an action against his former employer for constructive dismissal, this concept has no place in the Act. Consequently, whether a claimant has left voluntarily and is entitled to benefits under the Act and whether the claimant has been constructively dismissed and is entitled to sue their employer are different issues (Canada v Sulaiman, A-737-93; Peace). The role of the Tribunal in this case is to determine the former.
[69] In the hearing, rather than suggesting that his resignation was the result of him having been constructively dismissed, the Appellant argued instead that his mental health was such at the time he offered his resignation that his decision to resign was illogical, and his leaving was consequently not voluntary.
[70] However, the Tribunal does not accept the Appellant’s arguments on this point for several reasons.
[71] First of all, the Appellant has not provided any evidence corroborating his mental health condition and how this may have affected his decision to resign, or provided a good reason for failing to provide this evidence. While at the hearing the Appellant stated that he was not in a good frame of mind to ask for such a note from his doctor after his resignation, the Tribunal notes that this is different than the response the Appellant provided the Respondent on this same point. Indeed, the Tribunal notes that the Appellant was invited to submit documents regarding his medical issues to the Respondent upon reconsideration, however, he stated that it would cost him money for a doctor’s note and he does not know what his doctor would say other then she saw him on this date and prescribed him this medication. The Appellant was then advised by the Respondent that his doctor may be able to provide a letter saying that he had to leave his job for medical reasons if that was case, or whatever he feels is relevant. The Appellant provided no such letter, and consequently the Tribunal is left with only the Appellant’s own testimony about his mental health problems.
[72] However, the Tribunal does not find that the Appellant’s testimony about his mental health at the time of his resignation shows that he acted in an irrational fashion such that his actions were not voluntary.
[73] One reason for this finding is the internal inconsistency in the Appellant’s recounting of the facts and context surrounding his resignation. The Tribunal notes that the Appellant was told by the Respondent during the initial decision-making process that unless he could show that he was unable to make a reasonable decision based on his medical issues, that he may have difficulty showing just cause for his resignation. In reply, the Respondent’s notes state that the Appellant stated that “the depression just affects him from interacting with people. He was totally able to make decisions and will not lie” [emphasis added].
[74] The Tribunal finds this to be significant for two reasons. First, because the Appellant’s explanation of his resignation changed significantly after he was told by the Respondent that he may be able to show just cause if he could demonstrate he was unable to make a reasonable decision, and, second, the Appellant’s earlier statement that he was able to make decisions at the time of his resignation contradict his later assertions about him acting in an irrational fashion such that his actions were not voluntary.
[75] The Tribunal places less weight on the Appellant’s later assertions that his resignation was irrational and occurred because of his mental health issues, given that this explanation was provided by the Appellant for the first time at the hearing, which was after it was explained to him by the Respondent that the demonstration of such could provide him with just cause, and also because these later assertions contradict his earlier comment to the Respondent that he was capable of making decisions at the relevant point in time.
[76] The Tribunal also does not place great weight on the Appellant’s evidence regarding the irrationality of his decision to resign as a result of his behaviour following his resignation. The Employer has provided reliable evidence in this case – including an email written to her from the Appellant – of the Appellant threatening legal action against her if she stated on the ROE that he quit. The Appellant also provided credible evidence regarding a settlement meeting which occurred on May 6 in which the Appellant then demanded that his former Employer provide him with a $50,000 settlement, or otherwise face all sorts of litigation. The Appellant has agreed that this meeting occurred and that he made these demands.
[77] While the Appellant now claims that his decision to resign was irrational and that he was not thinking rationally from April 27 to May 2, the Tribunal notes that the Appellant followed through with his threats against his Employer to bring an assortment of legal and administrative actions against her if she failed to meet his demands of May 6, which the Tribunal notes is after the time the Appellant has alleged he was not thinking clearly because of his mental health issues. Indeed, the actions taken by the Appellant since his resignation – including those of May 6 – suggest that he was fully aware of the decision he was making to resign from his position, and that he pursued further actions because he believed he was the aggrieved party in this case.
[78] For the reasons above, the Tribunal does not accept the Appellant’s allegations that his resignation was irrational because of his mental health issues, thereby putting the voluntariness of his actions at issue.
[79] The Tribunal notes that the Appellant’s Record of Employment (ROE) (GD3-14 to GD3-15) and the other evidence on file – including the Appellant’s resignation by email – demonstrate that the Appellant left his job voluntarily, as he resigned from his job when he had the choice to stay in his position pursuant to Peace. This finding is supported by the Employer’s evidence that the Appellant would still have his position within her paralegal company had he not resigned his position.
Did the Appellant have just cause for leaving his employment?
[80] Having determined that the Appellant left his job voluntarily, the Tribunal must now consider whether he had just cause for so doing.
[81] The test for determining whether a claimant had just cause under section 29 of the EI Act is whether, having regard to all the circumstances, on a balance of probabilities, the Appellant had no reasonable alternative to leaving the employment when he did.
[82] The Appellant submits that two of the considerations in section 29 apply to his circumstances. Specifically, the Appellant alleges that he had just cause for voluntarily leaving because he was facing (iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act, as well as (xiv) any other reasonable circumstances that are prescribed.
Discrimination on a prohibited ground
[83] The Appellant alleged that he resigned because he was facing discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act, specifically, discrimination related to his depression and/or other mental health challenges he faces. As such, the first step in analyzing whether the Appellant had just cause to leave under this provision would be to examine the Appellant’s evidence regarding his mental health condition.
[84] The Appellant has provided testimony about his history of depression, but did not provide the Tribunal with any corroborating documentary evidence of his medical history to corroborate his mental health issues.
[85] The Appellant alleges that it is not incumbent on him to provide documentary proof of his medical condition. With all due respect, the Tribunal disagrees.
[86] The Appellant has not given any reasonable explanation as to why he has not brought any such medical documentation except to tell the Tribunal that he was not in a good frame of mind to ask for such documentation, and stating earlier when asked by the Respondent that it would cost him money. However, the Appellant admitted to seeing his doctor within days of resigning from his position, which would have provided him every opportunity to request a note verifying his diagnosis and – importantly – an explanation how this diagnosis might have affected his decision to leave his employment. However, there is no evidence before the Tribunal to suggest that the Appellant made any such efforts to obtain documentation to corroborate his allegations.
[87] The Appellant provided a case to support his allegation that documentary evidence may not be required to prove a mental disability. In this case, the British Columbia Human Rights Tribunal (BCHRT) found that the claimant testifying to her lengthy history of depression and her medical substantiation of a medical diagnosis for the weeks prior to her termination were adequate proof of her mental health issues. The BCHRT found that “the fact that she provided no medical documentation of any previous diagnosis or treatment does not preclude a finding that she suffered from a mental disability during the latter weeks of her employment…” (Appellant’s book of authorities Tab 5, page 44).
[88] However, the facts of the case cited by the Appellant are clearly distinguishable from those at hand, as the claimant in that instance did provide medical substantiation of her medical diagnosis for the weeks before her termination. In this instance, the Appellant has not provided any such documentary evidence. As noted in the BCHRT case presented by the Appellant, “the bare assertion that one is ‘depressed’ may not, on its own, be sufficient to establish a mental disability for the purposes of the Code” (Appellant’s book of authorities Tab 5, page 44). In this instance, the Appellant has only provided the Tribunal with his own assertion regarding his mental health and has failed to corroborate this with any documentary evidence.
[89] As noted by the Respondent in this case, the Appellant did not visit his doctor until after he resigned from his position, and even at that point failed to obtain any documentation to either substantiate his condition or to explain how his condition may have affected his decision to resign from his employment.
[90] The Federal Court of Appeal has clarified the importance of corroborating proof to substantiate medical reasons and/or a health condition as a reason for voluntarily leaving one’s employment (Canada (AG) v Dietrich, A-640-93; Canada (AG) v Brisebois, A-510-96).
[91] Furthermore, as noted earlier, the Appellant was given the option to submit additional documents to the Respondent upon reconsideration, and was even advised as to how a letter could assist his case. However, the Appellant provided no such letter and consequently the Tribunal is left with only the Appellant’s own testimony about his disability.
[92] Given that the Appellant is alleging that he experienced discrimination on the basis of his mental disability related to his depression, it is reasonable for the Tribunal to expect that the Appellant provide medical evidence to corroborate his claim. His failure to do so makes a finding of his resignation being necessary as a result of discrimination he faced pursuant to paragraph 29 of the Act difficult to sustain.
[93] This is especially so where the Appellant could not provide any specific instance in which he was discriminated against by his Employer. Given that the Appellant has alleged that he quit his position as a result of discrimination he faced, the Tribunal would expect the Appellant to be able to provide at least one example of the discrimination he experienced at his employment that led to him resigning from his position.
[94] The Appellant did allege that his Employer failed to accommodate his mental health disability and that this failure to accommodate ultimately resulted in his resignation. However, the Appellant’s argument on this point cannot succeed for several reasons.
[95] First, even though the Appellant states that his Employer failed to accommodate him, the Appellant has acknowledged that he did not request any type of accommodation from his Employer prior to resigning from his position.
[96] Second, it remains quite unclear to the Tribunal when exactly the Employer – and/or the Employer’s family – learned of the Appellant’s mental health issues, but the preponderance of the evidence before the Tribunal suggests it was within days of the Appellant’s resignation.
[97] While the Appellant alleges on one hand that he was open about these issues all along, he has provided other testimony that suggests this issue came to light at one of the meetings in late April, when he told the Employer’s parents that when he is fighting depression he may seem different than normal, but that after the meeting he felt they “did not accept or understand his disorder.” The Employer, meanwhile, alleges she was never told directly about the Appellant’s depression from him during his employment, and that she only came to know of it after he discussed it with her parents during their conversation towards the end of his employment when she was away sick.
[98] When asked specifically if he ever spoke of his depression, according to the Respondent’s notes, the Employer stated that “he never discussed his depression with her – she said he never told anyone about his depression. When this issue came up during the settlement conference on May 6, the Employer stated that she said to him that he never mentioned it to her previously and he said, ‘I know, I didn’t have to.’”
[99] However, the Appellant has also stated that he was open to his Employer about his struggles and she failed to accommodate him as needed. In order to support his argument that she was aware of his depression, he has entered a picture into evidence of a semicolon tattoo he received to celebrate not following through with a planned suicide attempt. The Employer admitted that she had received the email and was aware of his tattoo, but had not ascribed much weight to this as the Appellant frequently showed her his tattoos.
[100] The Tribunal does not find that the Appellant sending his Employer a picture of this tattoo and an explanation about its meaning results in a situation whereby the Employer can be said to have known – or ought to have known – about the depth of his alleged mental health disability and how this might affect the Appellant.
[101] Nevertheless, the Appellant has also stated that even if he was not forthcoming about his mental health problems, that there is a duty on the Employer to inquire about accommodation needs. This may be so. However, based on the credible evidence provided by the Employer on this point, the Tribunal accepts that the Employer made almost daily inquiries to see if the Appellant was okay when she believed he had become resigned at work and she felt something was wrong, and she asked him repeatedly if she could do something to assist on several occasions prior to the events which culminated in his resignation.
[102] Furthermore, the email correspondence between the Appellant and the Employer’s father also suggest that the Appellant’s father took steps to became involved in the situation to attempt to improve the work environment for all concerned when the Employer’s actions were unsuccessful, given the Employer’s father email which he states that “you know I really want to help you and [the Employer] resolve this ASAP.”
[103] Although the Appellant alleges that the Employer in this case failed to accommodate him, the evidence before the Tribunal suggests that the Employer went to great lengths to ensure that the Appellant had a satisfactory work environment. Examples of this given from the Employer include ensuring that the Appellant’s favourite snacks and drinks were always available to him at work, to welcoming him back to work after he left work early on multiple occasions because he was frustrated.
[104] Given that the Appellant’s testimony was not consistent as to when he informed his Employer about his mental health issues, the Tribunal prefers the evidence of the Employer in this instance, who alleges that the Appellant was open about his struggles with alcohol dependency, but that she was not directly told of the Appellant’s depression during the time of his employment, and that she only gained knowledge of these issues from her parents when they met with the Appellant during the final days of his employment.
[105] While the justifications in section 29 include decisions made as a result of discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act, the Appellant has neither provided any corroboration regarding his mental health issues and how they may have affected his decision to resign, nor proven that his Employer discriminated against him in any way.
[106] Therefore, the Tribunal does not find that leaving his employment was the only reasonable course of action open to the Appellant, having regard to all the circumstances of the case (Laughland, 2003 FCA 129). Rather, the Appellant could have been open and direct with his Employer about his mental health issues and any needs he had stemming from these issues.
Fear of being replaced and not being paid
[107] The Appellant also alleged that he believes the category in section 29 (c) of “any other reasonable circumstances that are prescribed” applies in this instance.
[108] However, the Tribunal is cognizant that the reasonable circumstances that are prescribed refers to the additional grounds set out in the Regulations. In this case the Appellant has not suggested that there any circumstances listed in 51.1 of the Regulations that apply in this case.
[109] Nevertheless, the Tribunal is also aware that the list contained in section 29(c) of the Act is not exhaustive, and that all the relevant circumstances of a case must be considered. As such, the Tribunal will consider further the circumstances which the Appellant has alleged resulted in him being constructively dismissed.
[110] Specifically, the Appellant has stated that he resigned from his position because he felt that he had been constructively dismissed because he had not been paid and because he felt his Employer was looking to replace him.
[111] The Tribunal finds that the Appellant’s presumption that he was going to be terminated and replaced was simply that – a presumption. Rather, the Employer gave credible testimony that the Appellant would still be employed by her today if he had not resigned his position. Furthermore, the Appellant based his belief that he would lose his job on an advertisement he found on Kijiji for a paralegal position for his Employer that had job responsibilities similar to his.
[112] However, as noted by the Respondent, the Employer advertised for a licensed paralegal to assist in small claims cases, and the Appellant was fully aware that he could not perform the tasks listed in the advertisement because he was not a licensed paralegal [emphasis added]. In response to the Appellant’s apparent concern about his job, the Employer attempted to assure the Appellant that his job was not in jeopardy and she was looking to rent out office space and seek assistance for certain tasks that he was unable to assist with given he was not a licensed paralegal. However, these assurances were not enough to convince the Appellant that his job was not at stake.
[113] The Tribunal finds that there is no reliable evidence that the Appellant’s job was in jeopardy at the time he resigned. Furthermore, the Tribunal notes that even if his job were in jeopardy, that this concern does not equate to just cause for quitting his employment, and a reasonable alternative would be to continue working there until he was provided some sort of notice that he was being terminated.
[114] The Appellant also stated that he felt he was going to be terminated because he was not paid by May 2, 2016. However, it came to light at the hearing that the issue of whether the Appellant was being paid in advance is currently being dealt with in other proceedings. As such, it is not clear whether that the Employer owed the Appellant money for work he had completed, or whether the Employer was simply late in providing the Appellant with the advance he was used to receiving.
[115] Either way, the Tribunal finds that the Appellant’s decision to resign the day after he felt his pay was due was not the only reasonable alternative in this case. The reasonable alternative in this instance would be to stay employed with his Employer and work to resolve the pay issues. Indeed, in taking the course of action he did, the Appellant went from having a steady income to having no income, which was clearly not the only reasonable alternative when the Appellant admitted he was in a situation of financial difficulty.
[116] The jurisprudence in this area of law holds that it is the responsibility of insured persons, in exchange for their participation in the scheme, not to provoke the risk of unemployment, or not totransform what was only a risk of unemployment into a certainty (Canada v Langlois 2008 FCA 18; Tanguay v Canada, 1458-84). Unfortunately, this appears to be what has happened in this case.
[117] Even if the Appellant was feeling unsatisfied with aspects of his job, the Tribunal finds that reasonable alternatives to him resigning would have been to work through the problems he felt he was having with his Employer to solve them, and, if no solution was found, to continue working until he could find other employment.
[118] The Tribunal finds that the Appellant has failed to demonstrate that, on a balance of probabilities, he had no reasonable alternative to leaving his employment when he did.
Conclusion
[119] The appeal is dismissed.
Annex
The law
Employment Insurance Act
- 29 For the purposes of sections 30 to 33,
- (a) employment refers to any employment of the claimant within their qualifying period or their benefit period;
- (b) loss of employment includes a suspension from employment, but does not include loss of, or suspension from, employment on account of membership in, or lawful activity connected with, an association, organization or union of workers;
- (b.1) voluntarily leaving an employment includes
- (i) the refusal of employment offered as an alternative to an anticipated loss of employment, in which case the voluntary leaving occurs when the loss of employment occurs,
- (ii) the refusal to resume an employment, in which case the voluntary leaving occurs when the employment is supposed to be resumed, and
- (iii) the refusal to continue in an employment after the work, undertaking or business of the Employer is transferred to another Employer, in which case the voluntary leaving occurs when the work, undertaking or business is transferred; and
- (c) just cause for voluntarily leaving an employment or taking leave from an employment exists if the claimant had no reasonable alternative to leaving or taking leave, having regard to all the circumstances, including any of the following:
- (i) sexual or other harassment,
- (ii) obligation to accompany a spouse, common-law partner or dependent child to another residence,
- (iii) discrimination on a prohibited ground of discrimination within the meaning of the Canadian Human Rights Act,
- (iv) working conditions that constitute a danger to health or safety,
- (v) obligation to care for a child or a member of the immediate family,
- (vi) reasonable assurance of another employment in the immediate future,
- (vii) significant modification of terms and conditions respecting wages or salary,
- (viii) excessive overtime work or refusal to pay for overtime work,
- (ix) significant changes in work duties,
- (x) antagonism with a supervisor if the claimant is not primarily responsible for the antagonism,
- (xi) practices of an Employer that are contrary to law,
- (xii) discrimination with regard to employment because of membership in an association, organization or union of workers,
- (xiii) undue pressure by an Employer on the claimant to leave their employment, and
- (xiv) any other reasonable circumstances that are prescribed.
- 30 (1) A claimant is disqualified from receiving any benefits if the claimant lost any employment because of their misconduct or voluntarily left any employment without just cause, unless
- (a) the claimant has, since losing or leaving the employment, been employed in insurable employment for the number of hours required by section 7 or 7.1 to qualify to receive benefits; or
- (b) the claimant is disentitled under sections 31 to 33 in relation to the employment.
- (2) The disqualification is for each week of the claimant’s benefit period following the waiting period and, for greater certainty, the length of the disqualification is not affected by any subsequent loss of employment by the claimant during the benefit period.
- (3) If the event giving rise to the disqualification occurs during a benefit period of the claimant, the disqualification does not include any week in that benefit period before the week in which the event occurs.
- (4) Notwithstanding subsection (6), the disqualification is suspended during any week for which the claimant is otherwise entitled to special benefits.
- (5) If a claimant who has lost or left an employment as described in subsection (1) makes an initial claim for benefits, the following hours may not be used to qualify under section 7 or 7.1 to receive benefits:
- (a) hours of insurable employment from that or any other employment before the employment was lost or left; and
- (b) hours of insurable employment in any employment that the claimant subsequently loses or leaves, as described in subsection (1).
- (6) No hours of insurable employment in any employment that a claimant loses or leaves, as described in subsection (1), may be used for the purpose of determining the maximum number of weeks of benefits under subsection 12(2) or the claimant’s rate of weekly benefits under section 14.
- (7) For greater certainty, but subject to paragraph (1)(a), a claimant may be disqualified under subsection (1) even if the claimant’s last employment before their claim for benefits was not lost or left as described in that subsection and regardless of whether their claim is an initial claim for benefits.